Friday, October 31, 2008

With the "Fairness Doctrine" facing a vigorous resurrection, it's time to prepare for phase two: the Religious Fairness Doctrine. No need waiting - why don't we prepare now for "religious fairness" to meet tough new standards that we could see one day? For example, does your ward currently have one-sided sermons and prayers, all focused on your own narrow moral and religious views? It would be wise to offer equal time to non-believers and dissenters. Scriptures might need to be edited to present more balanced viewpoints, perhaps alternating pages from ancient prophets with columns from the New York Times or at least Harry Potter. Primary kids would get CTW rings for one hand to balance CTR rings on the other. And of course, we would have to have a number of ward disservice projects each year.

If you've been hanging out in a cave recently - something I've found to be the best way to deal with this election - you might not have been paying much attention to the threat of the Fairness Doctrine in political speech. The Fairness Doctrine is a nice-sounding name for government control of broadcast speech through the Federal Communications Commissions (FCC). It began in 1949 but really become a factor in the 1960s when it was used routinely for political aims. It put radio stations at risk when they addressed political issues. Many resorted to watering down their content or going through the motions of having "equal time" for opposing views. In general, there was a chilling effect on speech. Only after 1985, when it was repealed under the Reagan Administration, did radio broadcasters dare to regularly broadcast politically-oriented talk-shows, and in that free market, conservative talk-shows have dominated. Some folks would like to fix all this unbalanced free speech by getting us back to the Fairness Doctrine. The risk, I'm afraid, is not only bringing a one-sided "fairness" to talk radio (i.e., to shut up annoying or dangerous voices), but perhaps to extend control to the Internet as well (via "network neutrality" or other tools). Talk radio is certainly the target, if you've listened to the politicians calling for the Fairness Doctrine. They aren't complaining about lack of fairness in newspapers or on TV, from what I've heard.

In 1962 President Kennedy's policies were under sustained attack from conservative broadcasters across the country. Of particular concern to the president were vocal right-wing opponents of the nuclear test ban treaty being considered by the Senate at the time. The administration and the DNC seized upon the Fairness Doctrine as a way to "counter the radical right" in their battle to pass the treaty. The Citizens Committee for a Nuclear Test Ban Treaty, which was established and funded by the Democrats, orchestrated a very effective protest campaign against hostile radio editorials, demanding free reply time under the Fairness Doctrine whenever a conservative broadcaster denounced the treaty. Ultimately, the Senate ratified the treaty by far more than the necessary two-thirds majority.

Flush with success, the DNC and the Kennedy-Johnson administration decided to extend use of the doctrine to other high-priority legislation and the impending 1964 elections. Democratic Party funding sources were used to establish a professional listening post to monitor right-wing radio. The DNC also prepared a kit explaining "how to demand time under the Fairness Doctrine," which was handed out at conferences. As Bill Ruder, an assistant secretary of commerce under President Kennedy, noted, "Our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters in the hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue."

By November 1964, when Johnson beat Goldwater in a landslide, the Democrats' "fairness" campaign was considered a stunning success. The effort had produced 1,035 letters to stations, resulting in 1,678 hours of free airtime. Critical to the campaign was the fact that much of the partisan commentary came from small, rural stations. In a confidential report to the DNC, Martin Firestone, a Washington attorney and former FCC staffer, explained,

"The right-wingers operate on a strictly cash basis and it is for this reason that they are carried by so many small stations. Were our efforts to be continued on a year-round basis, we would find that many of these stations would consider the broadcasts of these programs bothersome and burdensome (especially if they are ultimately required to give us free time) and would start dropping the programs from their broadcast schedule."

Brace yourself for fairness, and order your CTW rings today! (Now in two flavors for added balance: "Choose the Wrong" and "Choose the Wicked.")

Update - clarifying material from my response to some comments:Are concerns about the Fairness Doctrine unfounded paranoia? I hope so, but there's been fresh talk in Washington by Pelosi et al. about the need to bring it back. Shouldn't that at least raise an eyebrow?

That slurping sound in Washington is not just coming from Paulson's 700 billion slush fund sloshing in a few pockets - it's also coming from the salivation of politicians looking forward to further expanding their power. Does it take a delusional imagination to think that what already happened in the past couldn't happen again when the Fairness Doctrine is revived?

These kind of concerns aren't just tied to Obama, who actually said he opposes reinstating the doctrine (well, for now anyway). McCain, on the other hand, has done much more to threaten the future of free speech, in my opinion, through McCain-Feingold, which could be used much more actively in the future than it is today. Don't think I'm looking to him to save the eroding Constitution. This is not about Democrats vs. Republicans (or, more properly, Money Party A vs. Money Party B).

Net Neutrality is another nice-sounding concept, but it carries the sting of expansive regulation. Anyone who hasn't noticed how regulations expand in scope in the hands of those with an agenda hasn't been watching Washington for the past few decades.

The idea that Net Neutrality could join with Fairness to create a monster of Internet content regulation is controversial, but when an FCC Commissioner raises this as a possibility, it's not necessarily completely groundless. For those of you who have missed the news, here's a summary from a note in Wikipedia's article on the Fairness Doctrine:

On August 12, 2008, FCC Commissioner Robert M. McDowell stated that the reinstitution of the Fairness Doctrine could be intertwined with the debate over network neutrality (a proposal to classify network operators as common carriers required to admit all Internet services, applications and devices on equal terms), presenting a potential danger that net neutrality and Fairness Doctrine advocates could try to expand content controls to the Internet. It could also include "government dictating content policy".

Hope he's wrong! Hope I'm wrong, too! Now that's the kind of hope this country needs.

25 comments:

I never fully understood why in the media people have such a problem with fairness. If it wasn't for such a concept the right wing's favorite new channel FOX NEWS wouldn't exist. The whole point of that conservative news station is to balance the liberal opinion of the shows on plain old FOX.A balance opinion being stated is actually a good thing. Thats why there are two (or more depending on where your from) political parties. It is to give you multiple views and ideas, and then for you the majority to chose the best way. As for in the case of religion and faith, I have had to deal personally with fairness and equality laws. When I was running a Christian fellowship group in high school I received a great deal of flack as we were the only religious organization option. Being the naive person I am I didn't fight this and let them allow a Muslim fellowship group. Both of us were allowed to express our views and beliefs. Completely fair. Funny thing about that is no one joined the Muslim group and the Christian one was blessed by growing 10 fold. Fairness isn't an issue you need to worry about when what you are delivering is the truth.

I thought the CTW was "Choose the Whatever." As for the bible alternating with the New York Times, they d have several bibles that also include the philosophies of men mingled with sacred literature, so we can go ahead and pick up one of those.

Oh, puh-leeze. You usually do so much better than this, even in your political posts.

It's time for the election to be over if for no other reason than to put an end to these freak show distortions of religious politics or political religion or whatever it is that has turned the Mormon blogging world into, well, this post.

Think about it -- if we had to give time to non-believers, wouldn't the other churches have to give time to LDS? Fair is fair, and if the others were exposed regularly to Church doctrines(captive audiences, as it were)some good stuff might rub off on them. Yeah!

You've got network neutrality backwards - "network neutrality" means that Internet providers may not restrict the content that you view or publish over the Internet. It is a safeguard of free speech, not a means of destroying it.

Ardis, through my skills at reading between the lines (lines like "Puh-leeze" and "freak show"), I deduce that you are troubled by conservative concerns. Are concerns about the Fairness Doctrine unfounded paranoia? I hope so, but there's been fresh talk in Washington by Pelosi et al. about the need to bring it back. Shouldn't that at least raise an eyebrow?

That slurping sound in Washington is not just coming from Paulson's 700 billion slush fund sloshing in a few pockets - it's also coming the salivation of politicians looking forward to further expanding their power. Does it take a delusional imagination to think that what already happened in the past couldn't happen again when the Fairness Doctrine is revived?

These kind of concerns aren't just tied to Obama, who actually said he opposes reinstating the doctrine (well, for now anyway). McCain, on the other hand, has done much more to threaten the future of free speech, in my opinion, through McCain-Feingold, which could be used much more actively in the future than it is today. Don't think I'm looking to him to save the eroding Constitution! This is not about Democrats vs. Republicans (or, more properly, Money Party A vs, Money Party B).

Anon, Net Neutrality is another nice-sounding concept, but it carries the sting of expansive regulation. Anyone who hasn't noticed how regulations expand in scope in the hands of those with an agenda hasn't been watching Washington for the past few decades.

The idea that Net Neutrality could join with Fairness to create a monster of Internet content regulation is controversial, but when an FCC Commissioner raises this as a possibility, it's not necessarily completely groundless. For those of you who have missed the news, here's a summary from a note in Wikipedia's article on the Fairness Doctrine:On August 12, 2008, FCC Commissioner Robert M. McDowell stated that the reinstitution of the Fairness Doctrine could be intertwined with the debate over network neutrality (a proposal to classify network operators as common carriers required to admit all Internet services, applications and devices on equal terms), presenting a potential danger that net neutrality and Fairness Doctrine advocates could try to expand content controls to the Internet. It could also include "government dictating content policy".

Sam B., ouch - you nailed me. Citing a 1997 article to discuss events from the 1960s and 70s - how did I miss that? But I may also have missed your point. Are you suggesting that the Fairness Doctrine was not a source of abuse relative to freedom of speech?

Regardless of who wins next week, religious liberty and freedom of speech need vigilance. Once basic liberties are lost, they are often terribly difficult to restore. You can disagree and bring your counterarguments here, but I always hope for civility and meaningful dialog.

Mormanity, your rebuttal actually makes the post proper make more sense (and less of a hypersensitive rant). It is a good clarification.

I'm a long time NPR fan, but it annoys me when they find a balancing opinion just to preserve their objectivity cred. I say if a reporter is covering a story about water being wet, tacking on the contradictory opinion at the end just makes me want to turn it off. Sometimes the story is the debate, sometimes there's just a story, so tell it.

Now that the displacement by endless opinions has made journalism more scarce, I find the inclusion of token contrary _opinions_ even more exasperating. Hey, I've got social and political opinions too, but I have no illusions that they are worth carrying on cable news! Isn't there someone to make the call regarding relative merit?

But on the religious fairness idea, you haven't sold me on their being an inroad for it in an official form. But culturally, this idea that every opinion is of equal validity because of the conflation of merit with entitlement to that opinion. Because we are accustomed to at every hand hearing the flip side, as the listener to the one-sided sacrament meeting talk compartmentalize. Yes, this is true for me here. But does it really fly outside. If my neighbor's opinions are just the flipside, then do I really need to share the gospel?

1) Robert M. McDowell is a hack--pure and simple. He is a telecom lobbyist appointed to head the FCC. In folksy speak, he's the fox hired to guard the henhouse. So when you cite his concerns, consider the source.

2) the logic of Red Lion, the case that declared the fairness doctrine constitutional, does not apply to the internet. Not at all. Spectrum scarcity doesn't apply here. Ironically, the only way that the logic would apply is if the government allowed an oligopoly to restrict what messages you could receive on the internet. As long as ISPs do not restrict content, the logic of the fairness doctrine is not activated. If ISPs are allowed to restrict access to certain corners of the internet, then the logic of the fairness doctrine kicks in: the government would have an interest in making sure those restrictions are not based on viewpoint.

It's the comments here that are frightening. I'm always amazed when so many people have blinders on and can't see or just don't bother to research what the 'Fairness Doctrine' really is and what effect its proponents actually intend.

The Fairness Doctrine is all about stifling free speech. And shutting up the opposition, not leveling the playing field.

What should also send tingles up people's spines is how the Obama campaign is attempting to use litigation to stifle free speech.

And yes Jeff, I like the cave option for this election, because we have the two worst choices ever. And it's all well and good to say there are plenty of parties, but when was the last time a party other than the Ds or Rs actually won the POTUS? And only rarely do they win any other seat in Congress.

And now the two parties are more similar than ever...

The secret combinations are taking over, and the strong delusion, that they should believe a lie is in almost full sway.

Stay worthy, informed, prepared and ready. And don't allow your love to wax cold. What a time we live in. When you know how it ends though, in some ways it is kind of exciting to watch. How many generations have thought they were living in the end times? Are we the actual generation? I truly think so and much sooner than most think.

Nate, could you please explain how being a former lobbyist for telecom companies makes him unqualified for his role in the FCC and compromises his concerns about free speech on the Internet? Maybe it does - but I'd be more impressed with an explanation as to why the concerns are misguided rather than more ad hominem arguments.

"He's a hack, pure and simple" - is there something substantial behind this jab?

The substance was in the explanation that McDowell was a telecom lobbyist and a compulsive deregulator (you can read his history here. My point in my last post was that you held him up as an authority without any examination of his argument. McDowell is hardly an unbiased source. I've read McDowell's attempt to link net neutrality and the fairness doctrine. It's pure hogwash and scare tactics. Jeff, I know you aren't a lawyer, but you're a bright guy, and so I suggest you read the seminal justification for the Fairness Doctrine, Red Lion v. FCC. In this case, the Court gives its rationale about why the fairness doctrine is constitutional. The premises have to do with the scarcity of the broadcast spectrum. On the internet, there is no problem of there being "substantially more individuals who want to broadcast than there are frequencies to allocate." As I said before, the only way we would have this problem is if ISPs started to give preferential bandwidth to certain companies. If ISPs start to act as gatekeepers to say what their consumers can read or what they can publish, then the government would have an awful lot more reason to regulate them to make sure that they aren't practicing viewpoint discrimination. In sum, the fairness doctrine only applies if barriers to entry of the medium are high. Net neutrality keeps barriers to entry low. Therefore, net neutrality keeps the fairness doctrine from being applied on the internet.

Your argument that being a lobbyist makes one a "hack" leaves much to be desired. It is blatant stereotyping and implies a deep misunderstanding of what lobbyists actually do. Now, if you have evidence of misdeeds done while working as a lobbyist, that is different. But I have this hunch that you are simply assuming the worst of anyone who works as a lobbyist.

I could be wrong, of course, but if I am, I follow with Jeff: give substance, not attacks.

Nate, I'm not a lawyer (I am a patent agent who passed the patent bar exam, for what that's worth), but I associate with them frequently and get involved with the implications of many court cases. Based on that limited experience, I can tell you that it's unwise to expect an argument based on a previous case to play out the way you think it should. The trick is not to focus on the plain meaning of prior cases or prior law, but to ask how they can be twisted to justify a particular end. With that approach, Red Lion not only vanishes as a meaningful barrier to expansions of Fairness, but actually paints a roadmap on how to do so.

Red Lion posits that a laissez faire approach to freedom of speech is fine when people are speaking with their natural voice, for 100 million people could be speaking to 100 million listeners at the same time without drowning out the ability of others to be heard. But the rise of new technology, according to Red Lion, gives added power to some speech (like radio broadcasts) and can drown out others who lack that technology. Thus, some regulation is needed, and by imposing licenses and restrictions on who has access and what is said, orderly speech can be enabled and protected by the Fairness Doctrine and other regulations affecting broadcast speech. Yes, they do make some points about the limited bandwidth of the radio spectrum, but these are supporting arguments and not the essence of the legal argument for controls.

Does it take much imagination to see how lawyers and judges inclined to limit speech could adapt Red Lion for their needs? Here's an example of the kind of arguments I can foresee:

There are millions of Internet users who are all free to send email to people they know and to post comments on blogs or chat in chat rooms, but only a few have the luxury of having their own domain names and Websites. While there may seem to be endless bandwidth for the Internet, the reality is that Internet communication is dominated by the few "haves" who have high visibility in search engines, high traffic, well-known domain names, brand equity, etc. The limitations are quite analogous to the limitations that were cited as supporting evidence for the Red Lion decision. Thus, an article attacking Henry Paulson on, say, a popular blog that is read by thousands of people carries much more weight than a typical citizen can have speaking on the street or in a chat room. The speech of a blogger with significant traffic occupies limited broadcasting resources and threatens to drown out less enabled voices. Thus, it is only just, under Red Lion, that the Fairness Doctrine should be applied to those who are public stewards of limited high-popularity resources such as major Websites and blogs. Nothing should stop them from sharing their views with their neighbors or a few people they know, but when they command thousands of readers or have high Google page rank or other signs of a disproportionately large spectrum of market share on the Web, they must be expected to comply with the principles of Fairness.

Don't expect Red Lion to help. Even if it offered more ammo to defend free speech - it doesn't - it could simply be ignored. But I think it could actually be used as the excuse for justification of yet another power grab by madmen who hate opposing speech.

Based on that limited experience, I can tell you that it's unwise to expect an argument based on a previous case to play out the way you think it should.

Jeff, that's the only way to predict how laws will be interpreted. It's called stare decisis, and while it doesn't dictate with perfect accuracy, it's the only interpretive guide we have. You may argue that it doesn't guarantee a result, but I say that it makes my result much more likely than yours.

Besides, this is a stupid argument anyway. The content of the internet can't have the fairness doctrine applied to it--the U.S. doesn't have jurisdiction over the majority of the internet. The only regulatory chokepoint in the U.S. is the ISP, and unlike television stations, they don't create or control content. Tell you what, Jeff, rather than speculate about bogeymen, tell me how the fairness doctrine would actually work on the internet, then I'll respond. Tell me who will be regulated, what they will be regulated to do, and what the regulatory tools will be. Then tell me how you will get it past justices Alito, Ginsburg and Kennedy (you'll need at least one of them to create a majority opinion). Then, this will be a discussion worth having.

To clarify, when I said "it's unwise to expect an argument based on a previous case to play out the way you think it should," I was referring not to clear precedent (the "what"), but to arguments like yours where you can base intelligent, reasonable arguments on the "how" and the "why" of a case. But these rarely play out the way one might expect. The precedent of Red Lion - the "what" that was decided - is about approving government incursion into freedom of speech. Arguments based on the "why" and the "how" behind that case don't seem to be firm barriers against another round of incursions in the future. I really hope I'm wrong, and if some judge years from now says stare decisis from Red Lion saves the day for free speech on the Internet, I'll buy you a milkshake!

Nate, forgive me if I've got the law backwards, but it seems to me that Stare decisis actually strengthens the case for my concerns - that's what I was trying to show in my previous comment. Red Lion did not decide that government cannot regulate the Internet. It did decide that government can regulate speech when technological power gives a particular voice much more scope. The fact that a supporting argument based on limited radio spectrum bandwidth may not directly apply to the Internet does not seem very helpful in my uneducated, non-lawyerly opinion. Rather, I suggest that there are analogous issues on the Internet where those who occupy the loudest, most technologically enabled voices could arguably face restrictions under Fairness. So based on that precedent, that freedom of speech may need to be curtailed in light of technological power by a few, what protection does Red Lion's stare decisis give us from further similar incursions?

Internet restrictions within the borders of a single nation are possible, as we see today in China - with the cooperation of Yahoo and Google, among others. But the loudest global Internet voices of Yahoo, Google, Microsoft, Myspace, Facebook, CNN, etc. are generally American companies that could easily be regulated regarding the content they facilitate or the search results they return. There are hundreds of baby steps that could be taken - even quiet, covert steps simply taken in good faith cooperation with a government agency, such as giving 0 page rank in Google to politically unsavory sites, or requiring search results that bring up right-wing sites to be balanced by a similar number of opposing sites in the top 20 hits, or ensuring that LDS.org has a "fair" visibility relative to anti-sites (hmm, this could actually help). All confusing and difficult to implement - like most regulation these days. Ever looked at US tax codes? The difficulty and complexity of reducing liberty has rarely been a defense to those anxious to remove it.

The limited frequency spectrum for radio is not so limited, in theory - it is actually a vast continuum with an infinite number of frequencies. But practical limitations require a finite number of stations, a limited number of clear-channel licenses and geographical limitations on stations with duplicate frequencies. But anybody can communicate wirelessly, just not to huge audiences. Can you see the similarities to the Internet?

When you search for a term on any search engine, you don't see all the millions of related results in practice - the few with high visibility and "power" (page rank, etc.) show up. There are only a finite number of major hubs that will dominate traffic and delivery of thought. If the technologically enabled loud voices of radio merit government control under the Fairness Doctrine, what will stop government from one day taking similar steps toward the loudest influencers on the Web?

I asked you to tell me who will be regulated, what they will be regulated to do, and what the regulatory tools will be. Then tell me how you will get it past justices Alito, Ginsburg and Kennedy. You didn't. Until you do, I would just swing at ghosts, which is not a productive use of my time. I can't respond to every hypothetical abuse of liberty that might exist regarding this issue. So again, give me a scenario, and I can give you some arguments as to why it's unconstitutional according to existing case law. Anything else is paranoia.

Nate, those are some pretty tough demands for a causal conversation. I guess you win!

But do you really expect me to contrive a detailed scenario and essentially write compelling briefs that align with the judicial history of individual members of the bench in order to raise the possibility that there could be a problem, and to point out that Red Lion may be more of a problem than a defense?

Again, I hope you're right. Internet Fairness may never happen. If it ever did, it would be years away - so why the need to consider individual justices at this point in time?

FWIW, I did give the example of Fairness expectations being imposed upon search engine providers such as Google, with expectations of "fairness" standards in search engine results as well as decreased visibility for sites deemed to be counter to fairness principles or other political objectives. But whether it would be a law or a judicially developed doctrine in response to a lawsuit is hard to say. I'm hoping you're right and that the whole thing is paranoia!

Just like those crazies who almost a century ago, when the 16th amendment was being pushed with politicians assuring us that income tax would never exceed a fraction of 1%, cried out that it could expand beyond the promised limits and lead to massive taxation and support of cancerous government. Hah!!

You raise some great points. It's still not enough to make me think we've got freedom of speech in the bag for the next generation or two. Perhaps we'll both have some interesting new insights - and perhaps changed levels of concerns - within the next four years. Let's keep our fingers crossed that free speech will prevail at all levels.

Let's touch base in about 10 years - by then I might have in hand the relevant Supreme Court ruling upholding the Digital Fairness Act of 2014, and then we can compare notes. Unless I'm already locked up in the asylum for paranoia + unfairness.